The Supreme Court’s Dangerous Border Wall Precedent

Yesterday, the U. S. Supreme Court ruled that President Trump could use a declaration of emergency powers to divert money toward border wall construction—funds that were appropriated by Congress for other purposes. This ruling raises serious concerns about the future of our nation’s sacred doctrine of separation of powers.

Our Constitution makes it clear, in Article I, Section 8, that the power to tax and spend belongs to the Legislative Branch, not the Executive. By granting power to the President to shift money merely by declaring a “national emergency,” the court has opened the door for any future President to use that same gambit.

For those of you who may be of the Republican persuasion, let’s try out the new precedent with a left-wing Democrat in the Oval Office. Suppose that President is unhappy with the size of the military budget and decides to declare that homelessness in major cities has reached emergency status, requiring (in the President’s opinion) the diversion of five or ten billion dollars of military funds for that new purpose. Who cares that it was the people’s representatives in Congress who authorized the military spending in the first place? Don’t we all agree (says the President) that something needs to be done right away to keep people from starving in the streets?

Some might argue that Congress gave these emergency powers to the President when they passed the National Emergencies Act in 1976. The purpose of that statute was to set forth specific grounds and procedures by which a sitting President could declare a national emergency—the thought being that we could trust our nation’s elected chief executive to use that power to confront immediate dangers, such as a nuclear attack, and not to use that power merely as a means of circumventing the legislative process. Unfortunately, this week’s Supreme Court ruling has allowed President Trump to engage in just that sort of political gamesmanship.

There is a critical distinction between (a) the need for our President to act quickly to address threats to the United States when there is no time for Congress to act—i. e., actual emergencies; and (b) the desire of a President to circumvent the will of a Congress which has had plenty of time to consider the matter and has decided, after much debate, against the President’s course of action. The case of the border wall lies squarely in the latter category, since President Trump talked loudly about that issue during his 2016 campaign, then did nothing for two years, until Democrats won control of the House of Representatives, at which point he tried to pass border wall funding legislation, which failed. He then decided to declare his “emergency.”

The 5-4 vote of the Supreme Court was, sadly, along party lines, reflecting the views of the President who appointed each justice. It is the view of the Spirited Reasoner that the dictatorial powers of the Executive Branch are now officially stronger than they have been at any point in our nation’s history except during times of declared war.

Oh. And the power to declare war is supposed to belong to Congress. See Article I, Section 8:11.